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Fair Use And Game Mods?
brtb asks: "Rumors have been flying high on IRC that the popular Quake 3 mod "Bid for Power," based on DragonBallZ, was recently cease-and-desisted by Funimation and forced into selling out. I'm not speculating as to the validity of these rumors, but I'm sure the mod-making community (including myself) would want to hear from all the copyright experts out there in /. - even the IANAL ones - what possible legal problems can TV/game based mods get into, and are they avoidable? What's fair use in the way of names, images, characters, settings, etc.? Is there anything in particular that we should stay away from doing while developing mods?" Rumor this may be, but it raises an interesting question: what use is fair when it comes to character licenses, scenes and other such things that can result from parodies and game mods based on something seen on TV or at the theater? Update: 12/16 08:44 PM EDT:As expected, this is a rumor and nothing more. Bid for Power has not received a cease-and-decist order.
Fair use allows you to use, in part or in whole, copyrighted works for personal and/or educational purposes. It does not cover wide-spread distribution (for free or for profit) of copyrighted materials--obviously.
The owners of the DragonballZ license are in their right to ask that development of this mod stop and all distribution be cancelled. The mod has the potential of diluting the strength of the DBZ brand and hindering sales of a DBZ game if/when one comes out.
To answer your question of, "Is there anything that can be done with fair use so that mods created on licensed materials can survive?"--no, there isn't.
Warner Brothers has the copyright on the Animaniacs cartoon characters. Any representation of them is protected, except for "fair use". Just because you produce something which WB has not does not let you use their images. And you can't use your own drawings of Animaniacs cartoon characters any more than you can use wooden hand-carved renditions of Disney's mermaid as a fish restaurant logo...not without permission.
Of course, if you happen to independently create cartoon characters which happen to bear a coincidental similarity to Animaniacs then it's a different matter. But juries and art critics get to decide such issues, so an artist unlucky enough to have created similar creatures would probably try to create different ones instead.
Yes, this is offtopic. But where else can I voice a legitimate concern? I doubt "Ask Slashdot: What's Wrong with Slashdot?" would get posted. So please wait a little while before moderating down.
My mom is not a Karma whore!
Unless stated specifically, the images, names, phrases, story lines, yadda yadda yadda of pretty much anything are considered to be intellectual properties. Any unauthorized use of those properties is itself justification for cease and decist orders and/or other legal action by or on behalf of the rightful owner. That said, unless you're using these images, names, yadda yadda... for research purposes only, your usage probably doesn't meet the criterion for "fair use."
As a starting resource for our faculty, staff, and students our library website includes the following information:
FAIR USE, 17 U.S.C 107
Fair Use is a limitation that allows reproduction in certain instances, without securing the copyright owner's permission. Fair Use acknowledges the importance of educational use of copyrighted works, by allowing reproduction for purposes such as criticism, comment, news reporting, teaching, (including multiple copies for classroom use), scholarship, and research.
Materials that meet the four factors of fair use may be used without obtaining copyright permission.
Four factors must be examined on a case-by-case basis, weighed, and balanced to determine whether copying represents fair use. The courts have maintained that no single factor is determinative. The four factors are:
- Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- Nature of the copyrighted work
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole
- Effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished does not itself bar a finding of fair use if such finding is made upon consideration of all of the above factors. [17 U.S.C. 107 (1994)].Code commentary is like sex.
If it's good, it's VERY good.
My office has been taken over by iPod people.
Example: Johnny likes bikes. Johnny builds a website about bikes with all sorts of neat links and stuff and includes a page that quotes from the [your state here] legal code as published by Banks Baldwin Publishing. Sooner or later Johnny gets a C&D letter from BBP due to the BBP(C) on their publication. No money was ever transferred to or solicited by Johnny but, the C&D order holds because BBP stands to lose financially due to Johnny's web site.
Think it can't happen? Think again. It happened to me.
Code commentary is like sex.
If it's good, it's VERY good.
My office has been taken over by iPod people.
Really, how involved can this game be? The typical DBZ episode breakdown:
.agrippa.
3 minutes of recapping the last episode
4 minutes flying around
8 minutes powering up
4 minutes of those 8 spent talking about how the person powering up is achieving a new level of power previously not believed to be attained
1 minute of the bald short dude saying "I know I can't beat XXX but I must try"
30 seconds of fighting
5 minutes standing around staring each other down
1 minute of telling the other fighter how their efforts are futile
2 minutes of the announcer speculating on what is going to happen next
1 minute of the characters thinking what the announcer speculated on
2 minutes of the announcer speculating on what is going to happen in the next episode (again)
The rest of the time is commercials/credits.
So in a typical 30 minute map you would have 30 seconds of playing the same fighting animation over and over against a striped background. Sounds like fun!
The way a court will address a game modification matter is going to be a really complicated and touchy matter. The copyright issues involved are far from resolved. Not only are there different international standards (Europe is much more protective of copyright than is the U.S.), but the U.S. has not resolved differing interpretations of the law among its courts.
Copyright in characters usually depends upon how well defined and delineated the characters are. The more personality and distinctiveness ("originality") you give a character, the more likely it is that the character will be protected by copyright. At its extreme, this standard let the movie studio owning the James Bond movie character sue Honda for a commercial which depicted unnamed Bond-like characters doing Bond-like things. (That case came from a district court in the Ninth Circuit, which is very copyright-friendly.)
That standard, however, was developed for use in books and films. It's unclear how delineated a computer game character can be. However, the character-and-storyline rationale supported the decision in the Micro Star v. Formgen case, from the U.S. Court of Appeals for the Ninth Circuit. In that case, the 9th Circuit held that Micro Star's distribution of map files for Duke Nukem 3D infringed Formgen's Duke Nukem copyright. Personally, I think the case went too far, especially since Formgen had distributed a map editor to users along with the game. (The court, if I recall correctly, implied a license for users to design their own levels and maybe even trade them, but not for Micro Star to compile and resell them. But that might have been my copyright class filling in a gap in the court's reasoning.) The Ninth Circuit said that Formgen's characters were distinctive enough that distributing files which put the characters into new scenarios infringed Formgen's copyright. Rather than get into the mechanics of the game, the court seemed (to me) most interested in preserving (perhaps extending) a general rule of copyright: The author of a story (including, now, a story in the form of an interactive game), if it is adequately distinctive (and the bar is apparently pretty low in the 9th Circuit), generally has the exclusive right to write, develop, or license sequels.
Another case which deals with the use of characters in surroundings where their authors did not originally put them is Disney v. Air Pirates, from the same Court of Appeals in 1978. Air Pirates wrote a magazine which depicted Disney characters such as Mickey Mouse involved in all sorts of decadent activities (drug smuggling, etc.). Disney won the copyright infringement case because its clearly delineated characters were copied by someone else. It helps that the characters were in graphic form, and so copying was easily recognizable. Disney's characters are more delineated than the characters of most computer games, but I would not be shocked if, under this standard, many computer game characters would be easily infringed.
The issue of supplanting the characters in a given game with different characters in the same game engine and surroundings, or supplanting the capabilities given to the characters in the game with different capabilities, has not yet arisen in the courts. But it seems that it would be easy to infringe, and that at least in the Ninth Circuit it would be quite possible for the plaintiff to win. (I can't predict what would happen if the case went to the Supreme Court.) The Ninth Circuit is an important court for us to consider, because it covers the west coast of the U.S. Its jurisdiction thus includes not only Hollywood (which is why it's had so many copyright cases), but also all of the west coast software developers.
Fair use:
Fair use is determined by weighing four statutorily defined factors:
(1) The purpose and character of the use,
(2) the nature of the copyrighted work,
(3) the amount and substantiality of the portion taken, relative to the whole copyrighted work, and
(4) the effect of the use on the potential market for the work.
No one factor is dispositive -- courts must weigh them all.
I don't have time even for a halfway full discussion of fair use, but I'll talk briefly about the four factors.
Purpose and Character of the Use: Commercial uses are accorded less worthiness than are noncommercial uses. Uses which change the ideas expressed in a copyrighted work get more benefit than do uses which don't change the ideas. Copying for purposes with specially recognized benefits (parody, book/music reviews, etc.) gets a little more benefit even if done for a commercial purpose, but the copier may copy only so much as is absolutely necessary to make his or her point, and no more. Air Pirates did not get a fair use defense for the idea of "parody of drug use" because there was no reason for them to choose the Disney characters in particular. That the Disney characters seemed better or funnier for the purpose was not a good enough reason.
The Nature of the Copyrighted Work: Having not seen fair use defenses in software copyright cases before, I don't know how the court would look at this factor here. This inquiry seems to me to be a question preliminary to the fourth factor, which asks what the effect of copying is likely to be on the market for the original. It can also be read more broadly, as an instruction to the court to "remember to find out what it's dealing with" in each case.
Amount and substantiality of the portion taken: If you take the "core material" from a work and reproduce it without really changing the idea conveyed, that's more offensive to copyright than if you copy a few snippets. The Nation magazine may have only copied a few thousand words from Gerald Ford's rather long memoirs, but they copied the thing in the book everyone was most interested in: his thoughts on his decision to pardon Richard Nixon. They lost their fair use defense. While it seems to me that this would lean in favor of a mod maker or at least neutrally, because not much is usually taken, I can't say anything for sure.
Effect on the Market for the Original Work: We all know that a mod maker's reproduction of characters is generally not going to deprive the characters' authors of any of the market for their original work. It might even help. But it's going to depend on the way the copying was done in the individual case. If you make a mod that uses characters from an isolinear game in a first-person-shooter, this would probably run in your favor. If you take the characters from a not-so-wonderfully-designed first-person shooter, port them into Q3, and design levels to resemble the poorly-designed game only better, this factor is going to hurt you. Note that the plaintiffs do not have to prove actual damage to their market-- they only have to show potential damage to swing this factor their way.
Notice, most of all, that fair use is a defense that is applied from case to case. It is a weighing of factors based on the facts of each case. So, you don't know for sure that you've got a fair use defense in a given case unless it's been tried in court.
The moral of the story (in my non-lawyerly opinion): if you want to avoid trouble, the safe route is probably to try to get a license from the people who created the character to use it in the context you want to use it in. The fact that you may not be selling the mods for a profit might help a bit in a fair use defense, but it does not preclude a finding of infringement. Copying from a copyrighted work and giving the copies away for free is just as illegal as selling copies.
I'm still not a lawyer. If you think you're going to run into this sort of trouble, you need to find one.
Yea, this sucks. Everyone Got pissed when I made the "Columbine, the adventure continues" Quake Mod. Geez...
Maybe that was a bad idea.
Unfortunately Fair Use seems to mean for your own use. So you can make something, but can not distribute it and be garunteed protection under fair use. Even satire, which is supposed to be under fair use has been deemed illigal (look up some of the Disney cases if you want to..that company is EVIL).
If a company wants to ban a free, NFP game that some kids write on their own free time, just because it uses the companies carichters, they can happily sue them under our laws, and anyone else who has a copy too.
I just whish more companies were like Lucasfilm, where you can make as many Star Wars games stories comics and artwork as you want and share freely, you just can't sell it without their permission.
You are only young once, but you can stay immature indefinitely.
Translation: It's very very likely that the owners of the DragonBall Z franchise will want to release their own video game in the near future; even if they don't, the franchise is popular enough that the probability of a video game is high. So while the owners of, say, the Barney the Dinosaur probably won't fight too much over a Quake mod featuring their characters, the owners of DragonBall Z will want to reserve that right to those who legally license the rights.
However, it's always illegal to use someone's legally-owned characters without their permission. Some are just more likely to send lawyers out than others.
I want to buy a sticker of Calvin pissing on the sort of people who buy pissing Calvin stickers.
Ask Slashdot is not legal advice. It is not a substitute for time with a lawyer. It's still a resource. Ditto USENET and any other distributed discussion forum. I sometimes read the forums at vwvortex.com for ideas and help with my car. I still take it to the mechanic.
My advice for the original poster is to be very careful about investing time on a project that is based on a TV show, movie, etc. The game industry refers to this as a license, as in "The Matrix is a hot license"--the right to use Warner Brothers' Matrix trademarks, copyrights, and possibly patents is valuable. Incidentally, some folks are working on a Matrix mod for Half-Life. They are setting a trap for themselves. Warner Brothers can shut them down (or threaten to do so, which is almost as good). Another poster on this topic mentioned that this happened to the Aliens TC for Doom.
Some game companies will develop a game in the hope of securing a license. This is kind of like typecasting a role for a play or a movie. For example, M. Night Shyamalan wrote The Sixth Sense with Bruce Willis in mind. It worked out as he hoped. That was lucky. As an independent working more for love than money, don't count on such luck.
There are some articles at Gamasutra that discuss this topic in more detail. For instance, "Artistic License: Acquiring, Managing and Dealing with Licenses (and Making Them Profitable)" in the Business & Legal features and "Adapting Licensed Products to the Computer Medium." Most of the rules that apply to a game company apply to a mod maker. It doesn't matter that you're not trying to make money. It doesn't matter that you love The Matrix, DragonBallZ, Aliens, etc. The owner of the licensed property will defend his trademark, copyright, and patent rights.
It shouldn't be made into a game mod precisely because it isn't an outlet for teenage violence -- it's a source of teenage violence.
So I guess Hitler must have played Der Juden Pong when he was a kid, is that it?
Videogames incite children to violence, period.
Period? You're the supreme authority and final word on the topic? There has been no proof of that assertion. It would be akin to saying that having condoms available makes kids want to have sex. Or my personal favorite, that peaceful protesters incite more radical elements to commit violence.
I should know, because whenever I used to play videogames, I myself would start to get violent, and so did all of my friends.
I don't think that slamming the controller whenever you'd lose counts.
LK
"Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano
IMHO, as long as you're not profiting from someone elses work, or depriving them of profit, it should be fair use.
The flip side would be to follow the Calvin and Hobbes example: All those stickers on the back of the trucks that have Calvin urinating on company "X's" logo are not actually Calvin. It is similar, but it has some specific thing that makes it different, and therefore, marketable. People just THINK it's Calvin.
Just make Goku blonde, and call him kuGo.
-- You can't idiot-proof anything, because they're always coming out with better idiots.
The press release is here.